Hearsay Admissible to Deny Dismissal or Reduction of Marijuana Convictions under Proposition 6

People v. Hall, No. 2D CRIM. B292330, 2019 WL 4267761 (Cal. Ct. App. Sept. 10, 2019)

Proposition 64 and reduction of marijuana convictions

Proposition 64, an initiative measure known as “the Control, Regulate and Tax Adult Use of Marijuana Act,” amended section 11360 and added new sections 11361.8 and 11362.1. (Stats. 2017, ch. 27 § 129.) It reduces or eliminates penalties for marijuana offenses.

New section 11361.8, subdivision (e) provided that

“ A person who has completed his or her sentence for a conviction under Section[ ] … 11360 … who would not have been guilty of an offense or who would have been guilty of a lesser offense under … [Proposition 64] had that act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction “

Section (f) “The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid.”

Hall’s conviction got possession of marijuana for sale

The 1996 arrest report says that Los Angeles County Deputy Sheriffs found two partially smoked marijuana cigarettes in the ashtray of Diallo Malik Hall’s car. When they searched the vehicle’s trunk, they found a backpack that contained “a large amount of a green leafy substance, resembling ‘marijuana.’ ” The amount was “far greater than that normally possessed for personal use.” The backpack also contained “eighteen small ‘zip-lock’ baggies, commonly used for packaging narcotics scale, commonly used for weighing narcotics.” They concluded that Hall was in “possession of marijuana for sale” and arrested him for that offense.

According to the probation report, the marijuana in the backpack weighed “approximately one pound.”

Trial court’s consideration of the arrest report and probation reports

In 2018 Hall, filed an application for relief under Proposition 64 to dismiss his felony conviction for “the crime of sale or transportation of marijuana.” [Former Health and Safety Code section 11360, subdivision (a)] or, in the alternative, redesignate it as an infraction. The trial court denied the application but redesignated the felony conviction as a misdemeanor. It found “sufficient basis to believe” that appellant had transported reviewing his arrest and probation reports, which were prepared in 1996. Hall objected to consideration of the reports as “inadmissible hearsay.” The trial court overruled the objection and admitted the reports after the prosecutor argued that the arresting officers were not available, finding that the documents contained reliable information.

The trial court concluded that because both the arrest and probation reports contained similar information that was “simple and straightforward” and “the probation report is prepared by a person with official duties to prepare these reports for sentencing purposes and make sentencing recommendations” the probation report was a reliable source for the quantity of marijuana found in Hall’s car.

Appeal from trial court decision denying relief under Proposition 64 based on use of arrest and probation reports

Hall argued on appeal that the trial court erroneously considered “unsworn hearsay in a police and probation report” and that “[t]he prosecutor presented no other evidence establishing [his] ineligibility for dismissal.” He argues, “Proposition 64 did not authorize courts to disregard the rules of evidence, including those barring the use of hearsay, at a Proposition 64 dismissal hearing.” The hearsay rule in Evidence Code section 1200 provides: “(a) ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.  (b) Except as provided by law, hearsay evidence is inadmissible.”

What is clear and convincing “evidence” under Proposition 64

The meaning of “evidence” in the phrase “proves by clear and convincing evidence” of section 11361.8, subdivision (f) is not defined. The Court of Appeal reasoned that just as hearsay is admissible in determining whether a convicted felon is eligible for resentencing to a misdemeanor under Proposition 47 (Pen. Code, § 1170.18), reliable hearsay statements in a probation report are admissible to show whether a petitioner is eligible for relief under Proposition 64. The Court of Appeal in Sledge (People v. Sledge (2017) 7 Cal.App.5th 1089, 1095, 213 Cal.Rptr.3d 265 (Sledge) reasoned: “An eligibility hearing is a type of sentencing proceeding. Nothing in Proposition 47 suggests the applicable rules of evidence are any different than those which apply to other types of sentencing proceedings. Accordingly, limited use of hearsay such as that found in probation reports is permitted, provided there is a substantial basis for believing the hearsay information is reliable.

According to the probation report, the weight of the marijuana in the backpack was “approximately one pound.”  And there is no evidence that in 1996 appellant disputed the accuracy of the one-pound total. The trial court did not abuse its discretion in determining that, although it did not “know where that one pound of marijuana came from,” the probation report’s statement as to the weight was reliable. The trial court reasonably inferred that the probation officer had derived the weight of the marijuana from the report prepared by a criminalist at the sheriff’s crime lab. The criminalist’s report must have been included in the “D.A. packet” on which the probation report was based. The trial court noted, “[I]n [the] probation report there is … a summary of the facts that … presumably comes from the police report but also comes from things like chemist’s reports … that are provided [to the probation officer].”

The criminalist had an official duty to accurately weigh and analyze the seized contraband. Pursuant to the official duty presumption (Evid. Code, § 664), the criminalist’s report is presumed to be reliable. (See People v. Brown (1989) 215 Cal.App.3d 452, 455, 263 Cal.Rptr. 391 [“We have no reason to believe [that police chemist’s] test results [showing that the confiscated substance contained .84 grams of cocaine] were anything but trustworthy and reliable”].)

The trial courts’ ability to consider reliable hearsay in probation reports was necessary to efficiently implement Proposition 64 because even if law enforcement officials were available to testify, requiring their presence would run counter to the purpose of Proposition 64 “preserve scarce law enforcement resources to prevent and prosecute violent crime.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 3(w), pp. 179-180.)

Arrest Report

The arrest report was admissible because it falls within the official records exception to the hearsay rule. This exception is incorporated in Evidence Code section 1280, which provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:  (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event.  (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

Disposition

The Court affirmed the trial court’s order redesignating appellant’s felony marijuana conviction as a misdemeanor and denying his application to dismiss it or redesignate it as an infraction.